In the Interest of D.R., R.R., O.R., and G.S., Minor Children, M.H., Mother

IN THE COURT OF APPEALS OF IOWA
No. 17-0145
Filed August 2, 2017
IN THE INTEREST OF D.R., R.R., O.R., and G.S.,
Minor Children,
M.H., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan C. Cox, District
Associate Judge.
The mother appeals from the dispositional order confirming the
adjudication of her children as in need of assistance and placing them outside of
her care and custody. AFFIRMED.
Jeremy M. Evans of Sporer & Flanagan, P.L.L.C., Des Moines, for
appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Kim S. Ayotte of Youth Law Center, Des Moines, guardian ad litem for
minor children.
Brent M. Pattison of Drake Legal Clinic, Des Moines, attorney for minor
child G.S.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.
The mother appeals from the dispositional order confirming the children as
in need of assistance (CINA) and maintaining the children outside of her care
and custody. She claims the juvenile court’s dispositional order placing the
children in foster care1 was not the least restrictive means available. Specifically,
she argues the court should have returned the children to her care and custody
because the reasons for their removal had been resolved. The mother also
argues the State failed to make reasonable efforts toward reunification.
I. Background Facts and Proceedings.
This mother has been involved with the Iowa Department of Human
Services (DHS) a number of times in the past, both for these children and for an
older child who is now an adult. Most recently, in 2014, D.R. and O.R. were
removed from the mother’s care and adjudicated CINA after the mother tested
positive for marijuana and methamphetamine; O.R. and D.R. also tested positive
for THC.2 The mother was able to work through her issues with substance abuse
and have the children returned to her care.
The present involvement began in June 2016, when it was reported that
the mother was smoking marijuana in the presence of D.R., O.R., and R.R.—
then five, four, and one, respectively. It was also alleged the mother was
breastfeeding R.R. after smoking marijuana. When DHS interviewed D.R., he
1
Only two of the four children were placed in foster care. D.R. and R.R. were in the care
of their father and had been since August 2016—before the children were adjudicated
children in need of assistance—when the father was awarded physical care by the court
in an unrelated family law dispute.
2
R.R. was not yet born. G.S. and the mother’s oldest child—now an adult and not at
issue in this appeal—did not come to live with the mother until after the previous CINA
case closed.
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reported his mother smoked cigarettes outside the home that looked different
from the cigarettes she smoked inside the home. He also reported his mother
smoked out of a purple tube, and that he and his younger siblings were usually
alone inside the home while she did so.
DHS was unable to make contact with the mother until mid-August. Once
the social worker made contact, the mother admitted she had smoked marijuana
within the previous two months, but she denied breastfeeding R.R. afterward and
she stated she had not used methamphetamine since the previous DHS case
closed. The mother agreed to participate in a drug test the following Monday.
In the meantime, the mother took D.R. and R.R. to their father. 3 The
family court had awarded the father physical care of the children on August 1, but
the mother had refused to turn the children over to their father. After she did so,
on August 22, the father called DHS and reported the mother seemed to be
“tweaking.” He explained she was talking rapidly and moving her jaw around.
He believed the mother was high on methamphetamine.
As of October 17, the mother had yet to participate in drug testing, and
she refused to participate in voluntary services. The State filed petitions alleging
D.R., R.R., O.R., and G.S. were CINA, pursuant to Iowa Code section
232.2(6)(c)(2) and (n) (2016).
At the pretrial conference on October 31, all parties agreed the mother
would complete a hair-stat test and have a drug patch placed on her that day.
The mother again failed to do so, and O.R. and G.S. were removed from the
mother’s care on November 9. In the temporary removal order, the court stated
3
O.R. and G.S. have different fathers and were not part of the custody order.
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custody could not remain with the mother because “the mother’s unresolved drug
abuse issues and her refusal to provide a drug screen prevent[] her from safely
caring for these children. The mother exhibits signs that she abuses drugs but
she will not engage in services and she is not maintaining contact with
professionals.”
After the children were removed, the mother provided a drug screen that
was positive for marijuana. She continued to refuse to have a drug patch placed
on her.
The mother completed a substance-abuse evaluation on November 17.
She reported she used marijuana two to three times per week, with her last use
being the day before the evaluation. She reported consuming alcohol five times
in the previous twelve months, and she denied using any other substance since
2014. According to the evaluation, the “[s]taff recommended no treatment. [The
mother] reported that she does not believe she needs treatment.”
On November 21, the mother was arrested for assault causing bodily
injury. At the time, she was intoxicated and aggravated over losing her children.
According to the police report, the mother was walking near her residence
“engaging in several altercations with other residents” before she “physically
attacked” the victim “by striking her in the face and upper body,” pulling her hair
and throwing her to the ground. It was noted at the next team meeting that the
mother has a history of turning to alcohol in times of stress. DHS noted a safety
plan should be put in place in case the mother felt the urge to drink again, and
the mother indicated she would resume individual therapy and seek support
through her church in order to maintain sobriety.
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The CINA hearing took place on December 8 and 9. According to the
juvenile court’s written findings, the mother testified on both days of the hearing.
On the first, “[w]hile testifying, she talked very quickly and repeatedly moved her
jaw-consistent with [the father’s] description of the mother tweaking on meth.”
On the second day, the mother “did not talk quickly and did not move her jaw.”
The mother denied ever smoking out of a purple tube. Following the hearing, the
court confirmed the out-of-home placement of O.R. and G.S. and adjudicated all
four children CINA pursuant to section 232.2(6)(c)(2) and (n).
As part of the CINA order, the court ordered the mother “to immediately
cooperate with DHS for drug patch testing.” The mother did have a drug patch
placed on her, but she did not do it until four days later. The test results came
back negative.
The disposition proceedings took place on January 6 and 9, 2017. The
mother testified the issue with her jaw popping that the court had identified in the
CINA hearing was a result of her anxiety; she denied it had anything to do with
the use of illegal substances. She stated she would be able to provide medical
documentation about the condition; she did not bring it with her to the hearing.
The mother also testified that she did not put the drug patch on the day she was
ordered to do so because she was “angry” and “frustrated.” When asked if she
had used any illegal substances lately, the mother admitted she had “a couple
hits of weed” “within the last week.” The mother also testified about missing
visits with the children, including the two most recent scheduled visits.
Following the hearing, the court confirmed the CINA adjudication of the
children and found G.S. and O.R. should remain in out-of-home placement “due
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to the mother’s unresolved substance abuse and mental health issues.” The
court ordered that the mother should receive transportation assistance and DHS
needed to establish a phone call schedule and sibling visits.
The mother appeals.
II. Standard of Review
We review child-in-need-of-assistance proceedings de novo. In re K.N.,
625 N.W.2d 731, 733 (Iowa 2001). “Although we give weight to the juvenile
court’s factual findings, we are not bound by them.” Id. Our primary concern is
the best interests of the children. Id.III. Discussion
The mother argues the juvenile court’s dispositional order placing the
children in foster care was not the least restrictive means available. Specifically,
she argues the court should have returned the children to her care and custody.
Although the mother does not specify, we note that her argument only applies to
G.S. and O.R., as the other two children were in the care of their father pursuant
to an unrelated custody determination made by the district court before the
children were adjudicated CINA.
The mother maintains the children should have been returned to her care
because the issues that led to removal had been resolved and there was no
evidence to suggest thaechildren would suffer adjudicatory harm if they were
returned to her care. We disagree. Iowa Code section 232.2(6)(n) provides that
a parent’s drug or alcohol abuse that results in the child not receiving adequate
care is an adjudicatory harm. Here, the mother has a history—according to her
five-year-old child—of leaving her young children in the home while she smokes
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marijuana outside. According to her own testimony, the mother has continued to
smoke marijuana since the children were removed, including within one week of
the disposition hearing and the day before her drug-abuse evaluation. She did
not testify about an intention to quit, and she has not taken any steps toward
doing so. Additionally, we note that DHS and the juvenile court had concerns the
mother was using methamphetamine again. The mother points to the results of
both of her drug tests, which were negative for the substance, as proof the
concerns were unfounded, but we note the mother only tested twice out of the
handful of the times she was asked and never within the time period she was
asked to do so. Similarly, although the mother’s use of alcohol was not an initial
reason for DHS’s involvement with the family, in considering whether the children
could be returned without risk of further adjudicatory harm, we note the mother’s
intoxicated state during her arrest for assault causing bodily injury and her own
statements to caseworkers that she has a history of turning to alcohol during
times of stress.
We also note that after the children were removed, it was learned that a
number of the children had dental issues that needed to be addressed, including
rotting teeth that required surgery. Even after the children were removed, the
mother was expected to make the necessary appointments for the children.
However, at the time of the disposition hearing, the mother had not yet done so,
and she was being asked to sign releases so the foster parents could take over
the medical care. Iowa Code section 232.2(6)(e) provides a child in “need of
medical treatment to cure, alleviate, or prevent serious physical injury or illness
and whose parent, guardian, or custodian is unwilling or unable to provide such
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treatment” suffers adjudicatory harm. While this was not the adjudicatory harm
that originally led to the children’s removal, “[t]he adjudicatory harm requiring
continued removal does not need to be the harm that necessitated the initial
removal from the home.” In re A.A.G., 708 N.W.2d 85, 91 (Iowa Ct. App. 2005).
Because the children were still at risk of adjudicatory harms, we agree
with the juvenile court that out-of-home placement was still necessary at the time
of the disposition hearing.
The mother also argues the State failed to make reasonable efforts to
reunify her with her children. Specifically, she complains she should have been
receiving more visits with the children. The mother states that she made the
request for additional visits at previous hearings. The mother did not make a
request for more visits at the disposition hearing, and we do not have a record of
the CINA hearing. Assuming the issue is preserved, we cannot say the State
has failed in its reasonable-efforts mandate. Although DHS had scheduled only
once-weekly visits between the children and the mother, the mother had
struggled to consistently attend those. At the disposition hearing, she testified
she had missed the two most recent visits. She stated it was due to a
transportation issue, and the court ordered DHS to help assist with transportation
so the mother could be more consistent in the future. Additionally, the court
ordered a daily call schedule to be established so the mother could have more
contact with children. We note the mother was receiving more visits previously
because the foster parents initially agreed to supervise a weekly visit between
the children and the mother, but they had revoked their offer to do so after the
mother cancelled a visit approximately thirty minutes before it was due to start
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because her oldest, adult daughter could not attend. When the foster parents
explained how excited the children were for the visit, the mother responded, “If
[other daughter] can’t be there, it’s not worth seeing them.” On these facts, we
conclude the State has made reasonable efforts.
We affirm the out-of-home placement of the children.
AFFIRMED.